THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE NO: 8550/09

In the matter between:

PIKOLI, VUSUMZI PATRICK Applicant

And

THE PRESIDENT First Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
THE CHAIR OF THE NATIONAL COUNCIL OF PROVINCES Third Respondent
AFFIDAVIT

I, the undersigned,

THABO MVUYELWA MBEKI

do hereby make oath and state that:

1. I am an adult male, and the former President of the Republic of South Africa.

2. The facts deposed to in this affidavit fall within my personal knowledge and are both true and correct, unless otherwise stated or the converse appears from the context.

3. On 21 January 2005 I appointed the applicant as the National Director of Public Prosecutions in terms of section 10 of the National Prosecuting Authority Act, 32 Of 1998 (the Act). The appointment was effective from 01 February 2005.

4. Concerns about the conduct of the applicant had been reported to me over a period of time. This conduct raised the issue of the fitness and propriety of the applicant to continue to hold office. I eventually suspended the applicant on 17 September 2007 in terms of section 12(6)(a) of the Act and furnished him with a letter of suspension. [‘This letter is annexed to the applicant's papers at pages 297-299 of Pikoli Annexures Bundle]

5. In so suspending the applicant I pointed out the important role played by the Prosecuting Authority in the fight against crime. I also pointed out the threat posed to the national security by such crime and expressed a concern regarding the applicant's exercise of his discretion to prosecute offenders and the potential effect of such exercise on national security. The letter further advised of the Minister's view that there has been a breakdown of relations between the offices of the NDPP and the Minister due to several incidents. For illustrative purposes I quoted one such incident being the applicant's testimony to the Khampepe Commission of Inquiry.

6. The letter of suspension specifically made reference to the provisions of section 179(6) of the Constitution of the Republic which stipulates that the Minister of Justice and Constitutional Development , who exercises final responsibility over the Prosecuting Authority on behalf of Government, must ensure that the Prosecuting Authority serves the public interest. I further advised the applicant that the Minister had informed me of some of the matters that the National Prosecuting Authority was seized with and that some government agencies had advised me of some of the activities relating to the same matters. The examples set out in the suspension letter were given to avoid a suspension couched in general terms, which could render the decision to suspend appear devoid of basis or fact and would invariably, due to lack of detail, fail to appraise the applicant of a basis for the suspension.

7. I did not find it necessary to elaborate on these matters in the suspension letter, since a section 12(6)(a) Enquiry would be instituted during which Fall the relevant matters that I relied upon to question the applicant's fitness and propriety would be set out and substantiated in detail. Indeed, the Act does not require it to do so.

8. It was appropriate that I give the applicant a basis for my decision to suspend him. The letter does not purport to list all matters that had, over a period, come to my attention that, in my view, impacted on the applicant's fitness and propriety to hold office. I listed some of these matters.

9. I instituted, without delay, an enquiry into the fitness and propriety of the applicant to hold office in terms of section 12(6)(a) of the Act. I simultaneously made the decision to suspend the applicant pending such Enquiry. The Enquiry was not intended to establish the correctness or otherwise of the suspension. Its purpose was to discharge its sole mandate as set out in section 12(6)(a), i.e. determine the fitness and propriety of the applicant to continue to hold office.

10. I appointed Dr Frene Ginwala to head the Enquiry. On 3 October 2007 I prepared the Terms of Reference for this Enquiry.

11. The Terms of Reference for this enquiry were that Dr Ginwala was required to determine:

11.1. Whether the applicant in exercising his discretion to prosecute offenders, had sufficient regard to the nature and extent of the threat posed by organised crime to the national security of the Republic;

11.2. Whether he! in taking decisions to grant immunity from prosecution or enter into plea bargaining arrangements with persons allegedly involved organised crime, took due regard to the public interest and the national security of the Republic;

11.3. Whether the relationship between the National Director and the Minster of Justice and Constitutional Development had irretrievably broken down;

11.4. Any such mailer as may relate to the applicants fitness and propriety to hold office.

12. The first three points of the Terms are mirrored in the suspension letter. It is important to note however that the Enquiry was also mandated to consider any other mailer as may relate to the applicant's fitness and propriety to hold office.

13. The complaints ultimately relied upon in support of the contention that the applicant was not a fit and proper person to hold the office of NDPP, were set out in the submissions and affidavits filed on behalf of the government, and supplemented by the evidence led at the Enquiry.

14. I am advised that during November 2008 Dr Ginwala submitted a report at the conclusion of the Enquiry to President Motlanthe.

15. Against this background I turn to deal with those averments in the applicant's papers which, at this stage, appear to me to require a response. My failure to deal with any particular allegation should not be construed as any admission or concession with regard thereto. It simply seems to me, with respect, that they are irrelevant having regard to the relief sought by the Applicant in this application.

16. Ad paragraph 15

I admit the contents of this paragraph.

17. Ad paragraph 16

17.1. I deny that the applicant regularly reported to me progress on the Selebi investigations- The applicant's reporting line was to the Minister of Justice and constitutional Development, as the responsible Minister.

17.2. The applicant would appraise me, on an ad hoc basis, of investigations where high ranking officials could be implicated such as during March 2006 when he informed me that he was in possession of information that implicated the Minister of Safety and Security and the commissioner of Police in wrongdoing

17.2. Until September 2007 when the applicant advised me of the arrest of Commissioner Selebi and search and seizure warrants all other meetings I had with the applicant concerned requests he made to me to facilitate access to information held by other the South African Police Service ("SAPS'). To the best of my recollection the earlier request related to access to the Kebble docket in the possession of SAPS. in the applicant's presence I called the Commissioner of Police for a meeting among the three of us. In this meeting I relayed the applicant's request to the Commissioner, emphasising to him the need to afford the applicant the requisite assistance and cooperation. The subsequent request related to other documents that in the applicant's view were still outstanding and over which an impasse between the DSO and SAPS had been reached. This meeting was in May 2007 following a letter from the applicant detailing the difficulties the DSO was experiencing in regard to access to documents.

17.4. Other than the meetings referred to above, the only other meeting I had with the applicant was in March 2007 at the Minister's instance. I had invited the former NDPP, Mr Ngcuka, to this meeting the purpose of which was intended to help guide the applicant following his previous request for intervention.

17.5. In the circumstances I submit that the applicant's assertion that he regularly reported to me regarding the Selebi investigation is not entirely accurate. He met me to ask for assistance, which I always rendered.

18. Ad paragraph 17

18.1. I do not deny the contents of this paragraph.

18.2. The applicant however elects not to inform this court that when he told me of the warrants I asked him why, if he wanted to arrest the Commissioner and to search his home and offices1 did he not approach me for assistance. I told him that I would deliver the Commissioner to him if he so required to avoid a potential shoot- out between members of the DSO and SAPS. I needed to ensure that the police leadership was prepared to deal with the arrest of the Commissioner. It was in this context that I made the request for a two week period.

19. Ad paragraph 22

19.1. I admit the contents of this paragraph only to the extent that I had a meeting with the applicant as alleged and that in such meeting I asked him if he wanted to resign.

19.2. When the applicant refused to resign I had no option but to consider his removal from office. I suspended the applicant pending the enquiry. In so suspending him I advised him of the reasons for my decision, I did not purport to place verbally before the applicant all the grounds for my decision to seek his removal or for his suspension

20. Ad paragraph 23

20.1. I submit that the applicant selectively reads the letter of suspension.

20.2. The letter specifically states that I have been informed of some of the matters that the National Prosecuting Authority was seized with and the activities relating to such matters.

21. Ad paragraphs 63

21.1. I do not deny the contents of this paragraph. It is necessary however that I place these averments in their proper context.

21.2. Although I do not have an immediate recollection of this meeting, I would have expected him to inform me of an intended search of the Union Buildings.

21.3. Having so informed me, I would then have asked him to formally inform the Deputy President who at the time was occupying the office intended to be search. Equally so, I would have advised him to liaise with Rev Chikane as Director-General in the Presidency

22. Ad paragraph 89

22.1. Whilst I do not deny the contents of this applicant. it is necessary that they be considered in their proper context.

22.2. At the time that the applicant advised me of the letter from COSATU's attorneys I had already been briefed on the Browse Mole report and had considered the necessary steps to take in regard thereto. On 30 May 2007 at the meeting of the National Security Council I directed that an investigation into the matter be undertaken. I issued the terms of reference I had already prepared for this purpose.

22.3. To the extent that the applicant intends to suggest that my advice to him to meet with the Ministers of Intelligence, Safety and Security and Justice to brief them on the letter denotes that I had no further intention to deal with the Browse Report I deny such suggestion. The investigation I subsequently called for had been the culmination of a process I had already embarked upon as regards the report, which process was underway on the day of the meeting.

23. Ad paragraphs 93- 99

23.1. I admit that subsequent to the Browse Mole Report coming to my attention I directed the Directors- General of the Departments which are part of the National Security Council to conduct an investigation into the matter. To this extent I issued Terms of Reference for such an investigation to establish the source(s) of the report, its compilers, their intentions and the relevant networks2. Such a mandate required the full cooperation of the Directorate of Special Prosecutions ("the DSO") within the National Prosecuting Authority from whom the report originated.

23.2. It subsequently came to my attention that the DSO was not providing full cooperation to the investigation.

23.3 I also subsequently learnt that the applicant had become aware of the intelligence nature of the report much earlier than the date on which he had informed the Directors-General of the National Intelligence Agency and the South African Secret Service and was informed that he had therefore failed to comply with the provisions of the National Strategic Intelligence Act 39 of 1994 which enjoin a department of State that comes into possession of intelligence information to transmit such intelligence without delay to the relevant service forming part of the National Intelligence Structures.

24. Ad paragraph 150.3,

24.1. The contents of this paragraph are deliberately misleading.

24.2. I refer to what I have stated above in respect of the meetings I had with the applicant. To the best of my recollection he advised me in earlier meetings about the allegations against the Commissioner. The later meetings related to his request for assistance which I always rendered The papers filed by the applicant in the Enquiry1 which have not been submitted to this Honourable court, meticulously set out the support I rendered him in the discharge of his functions. At paragraph 155.3 of his affidavit the applicant, with reference to his request for my intervention in obtaining documentation from SAPS, makes the point that I stated that # evidence revealed that Mr Selebi was corrupt, [IJ would also want to know whether other senior officials were also corrupt': Further that I "directed SAPS to cooperate with the 050 and provide the information required' I submit that these concessions belie the contentions made in this paragraph. This culminated in a process under the direction of the Director- General in the Presidency, Rev Chikane. I understand that Rev Chikane has deposed to an affidavit and canvassed this issue in sufficient detail. In September 2007 he informed me, for the first time, that he had obtained search and arrest warrants against the Commissioner.

24.3. On the basis of the aforegoing I submit that the applicant deliberately attempts to mislead this 1-lonourable court that he had made 10 reports to me on the progress of the investigation. It is inconceivable that he would have done so with such regularity as the NDPP does not report to the President but to the Minister of Justice and Constitutional Development.

25. Ad paragraph 150.4

The contents of these paragraphs are admitted.

26. Ad paragraph 154

Annexure 252 speaks for itself and requires no elaboration.

27. Ad paragraph 155

I admit the contents of this paragraph insofar as they relate to me.

28. Ad paragraph 163

28.1 I had been advised by Rev Chikane that Mr McCarthy requested a meeting with me. I have no record of the applicant's attempt to meet me. The applicant could have called Rev Chikane, as was his usual practice.

28.2. Save as above, the contents of this paragraph are denied.

29. Ad paragraph 168.

29.1 I submit that it was not reasonable for the applicant o assume that I (or my office through Rev Chikane) were made aware by Mr McCarthy of the fact that the arrest warrant for then Commissioner Selebi had been sought and obtained. At paragraph 162 the applicant alleges that Mr McCarthy had reported to Rev Chikane of the DSO's failure to obtain cooperation from SAPS. No report was made by anyone delegated by him as regards the arrest warrants.

29.2. The surprise I expressed at the meeting was surprise at being informed of the fact that the applicant had sought and obtained the warrants without prior notice to me, especially because I had instructed the police to co-operate with the applicant. I had also set up a mechanism, through Rev Chikane, to ensure that the applicant is assisted

29.3. I deny that I did not indicate to the applicant that one week was insufficient for me to facilitate the arrest of the Commissioner- The fact that at the next meeting I again reiterated the request militate against the suggestion that I did not deem one week insufficient. Having considered that I required more than one week to ensure the proper execution of the warrants, it is inconceivable that I would not have communicated this to the applicant. I assert that I did, on two occasions, and on each instance the applicant declined my request-

29.4. Save as above the contents of this paragraph are admitted.

30. Ad paraqraph 169.1 and 169.2

30.1. I did not take the matter of the warrants further because the applicant was clearly determined to execute them, notwithstanding my explanations for a need to provide an appropriate environment for their execution. The applicant was not prepared to compromise.

30.2. I specifically advised the applicant that given sufficient time I would put in place mechanisms that would facilitate the arrest of the Commissioner and the search of the Police Headquarters. In this regard I raised the prevailing anger of the members of SAPS and their preparedness to go to jail should it come to that and expressed my concerns of the prospects of a standoff

31 Ad paraqraph 169.3

31.1. Whilst not denying the contents of this paragraph I wish to point out that the NDPP does not attend the National Security Council. The applicant would therefore have not been entitled to attend such a meeting.

31.2. For reasons beyond the scope of this matter the applicant was not invited to such meeting.

32. Ad paragraph 170

32.1. I admit that I generated the letter referred to in this paragraph.

32.2. I submit that in my capacity as the President it was within my prerogative to require the Minister who exercises final responsibility over the Prosecuting Authority to provide me with all necessary information to enable me to take proper and informed decisions that affect the interests of the country It is not within the applicant's power as the NDPP to question my reasons for seeking such information or indeed necessary for him to understand such reasons.

33. Ad paragraph 181

33.1. The Minister had reported to me the interaction with the applicant.

33.2. After the applicant had refused to grant me more that one week to prepare for the arrest of the Commissioner, I had grave concerns that if the arrest and searches were executed in a hostile environment national security would be compromised plunging the country into turmoil.

33.3. When I met the applicant, I first confirmed with him that he had discussed a possible resignation with the Minister. He then informed me that he will not resign. I informed him that I would suspend him invoking the provisions of section 12(6) of the NPA Act.

33.4. In suspending the applicant I deny that the only reasons I gave was as alleged. I took issue with the applicant that he intended to compromise national security having regard to the manner in which he wanted to arrest the Commissioner of Police and search the Police Headquarters.

33.5. I submit that I expressed concerns as reflected in the letter of suspension.

33.6. Save as above the contents hereof are denied.

34. Ad paragraph 182

I refer to what I have stated above in regard to the contents of this paragraph.

35 Ad paragraph 200 and 201

35.1. I submit that the view expressed in this paragraph clearly confirms that the applicant lacks an appreciation of the role of the NDPP in ensuring the stability of the country and the responsibility that government bears to, at all times, maintain an environment that does not threaten national security and to decisively address all situations that may pose a risk to national security. This lack of appreciation, that came to light only after his appointment, brings into question his fitness and propriety to continue to hold such office.

35.2. I deny that the complaint regarding the applicant's failure to inform me of the arrest and search and seizure warrants was a contrived afterthought. I submit that implicit in my request to the applicant to suspend the execution of the warrants to enable me to make all the necessary arrangements was a displeasure at obtaining the warrants without prior notice. Had the applicant so informed me, I would not have been reduced to bargaining with the applicant to afford me more time in the interests of the country. My request was repeated to the applicant the following day as set out in paragraph 169.2 of the applicant's affidavit

35.3 I fail to understand how my failure to complain directly to what I viewed as a fait accompli can be construed as a lack of concern that I was not informed of the intention to obtain the warrants.

36. Ad paragraph 218

36.1. The allegations made herein are without substance. On the applicants own version I reiterated to him my request for more time even after he had categorically informed me that he cannot grant me more than one week. This the applicant points out in paragraph 169.2.

36.2. In light of the fact that the applicant had restricted me to one week to make extensive arrangements for the imminent arrest of the National Commissioner, who at the time was also the Head of Interpol, I had to confer with the NSC to establish the risk posed by this decision and consider ways of minimising any potential threat to national security. I submit what became of these discussions is a confidential matter of national security and outside the scope of these proceedings. All I can say in this regard is that following such discussions the advice I received was to suspend the applicant from office with immediate effect.

The applicant's assumptions in this regard are therefore irrelevant.

36.3. The applicant concerns himself with matters of Cabinet that are beyond the scope of his office. My communication to the Minister of 17 September 2007 was confidential as this constitutes a communication between Cabinet members- He became aware of it through the Enquiry, having demanded a copy, with a threat to delay the start of the enquiry if he was not furnished with such a copy. I authorised the release of the letter not because the applicant was entitled thereto but because I considered it in the national interest that the Enquiry discharge its mandate as expeditiously as possible. A protracted suspension of the NDPP was not in the country's interest. In the circumstances I consider it grossly inappropriate for the applicant to proffer unsolicited suggestions at to what the letter ought to have contained and seek to draw adverse inferences from the fact that the letter does not set out issues that, in his view, the letter should have contained.

36.4. As I stated above, I did not purport, at the time I suspended the applicant to inform him of all the details of the reasons I may have had to bring his fitness into question and therefore seek his removal from office. The suspension letter equally did not seek to attain this purpose. My failure to inform the applicant that one of the other reasons for suspending him was his refusal to accommodate the need to establish an enabling environment does not detract from the validity or gravity of the complaint. Clearly an appreciation of this need was, and is sadly, still lacking.

37. Ad paragraphs 225 and 226

I refer to what I have stated above in regard to the allegations contained in this paragraph.

38. Ad paragraph 227

38.1. I note the applicant's contentions as regards his experience and knowledge of national security issues. I point out however that such knowledge and experience must yield before that of a President who receives updated security briefings and intelligence reports on a continuous basis and the National Security Council's collective knowledge and experience. The applicant, not being the President, was not privy to this information. Neither was he privy to the deliberations of and security realities that the NSC dealt with on a continuous basis. Any assessment made by the applicant as to national security cannot be made on the basis of facts and circumstances not known to him. I submit that had he been privy to the necessary facts, and guided by national interests, he would not have had this burning desire to execute the warrants in the manner he contemplated- It must be borne in mind that the warrants sought access to documents and to secure the appearance of the Commissioner before a Court of law. Both these ends, I submit, could have been achieved without the need to jeopardise national risk. Curiously, the applicant fails to explain to this court what steps he contemplated or which he would have taken to avert a crisis.

38.2 I have no intention to dispute the applicant's experience and knowledge. I only wish to point out that he, as the NDPP, did not bear the ultimate responsibility for the security of the country. The fact that he may possess knowledge and/or experience superior to an average NDPP does not detract from this fact. The President alone bears this Constitutional responsibility. I assessed the information furnished to me by the security agencies of the country and acted in accordance therewith.

39. Ad paragraph 243

The allegations contained in this paragraph are denied. The reasons for my suspension of the Applicant are set out above.

THABO MVULELWA MBEKI

[Rosebank, 12 May 2009]